The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
In 2016, Hilda Brucker received a call from a Doraville, Ga. city clerk demanding she come to the court house immediately. There, a judge and prosecutor confronted her with photos of her driveway, which had cracks in the pavement and thus supposedly violated city code. Brucker had gotten zero notice or opportunity to correct the "problem," but she was still given a fine and probation. This week, a federal judge ruled that Brucker's suit, challenging Doraville's systematic violations of due process, can proceed. Read more here.
- Feds: Affixing a bump stock to a semiautomatic weapon allows it to fire so rapidly that it essentially becomes a machine gun. And machine guns are illegal, so we can ban bump stocks—up to 520k of which must now be relinquished or destroyed. D.C. Circuit (over a dissent): No need to prevent the ban from going into effect while litigation proceeds.
- Man purchases as much as 1,700 grams of heroin from a dealer over the course of several months. Surprise! The purchaser is a confidential informant. Does the dealer get the 10-year mandatory minimum for distributing 1,000-plus grams? The Third Circuit says no; each sale is a distinct offense, and the gov't didn't show that any single sale was for 1,000 grams or more.
- In 1988, 17-year-old is convicted of murdering Lynchburg, Va. gas station manager. He became eligible for parole in 2005, but the board has declined to release him on 10 occasions. Fourth Circuit: It is not cruel and unusual for a parole board to decline to specifically consider age-related mitigating circumstances. Nor do the board's procedures (providing a hearing and list of reasons for denial) fall afoul of due process.
- Jefferson Parish, La. chief deputy sheriff is convicted of tax fraud. Although his guidelines range is over two years, the judge gives him only probation. Did he get off too easy? Fifth Circuit: We defer to the sentencing decision. Concurrence: "[D]eference need not mask disagreement." The guy cheated on his taxes for 12 years, claiming deductions for things like an Alaskan cruise and 40k miles he never drove. Gov't officials shouldn't be treated better than average citizens. [Speaking of, n.b. majority footnote 1, telling the AUSAs to knock it off with mischaracterizing the record.]
- Texas inmate threatens to commit self-castration or suicide if gender reassignment surgery is not provided. Does declining to provide the procedure inflict cruel and unusual punishment? Fifth Circuit: There's legitimate medical debate about the efficacy of gender reassignment, so withholding it isn't cruel, and no state in the country routinely provides it, so withholding it isn't unusual either. Dissent (sidestepping linguistic debate by using no gendered pronouns): The question isn't whether there's debate in general, but whether there's debate as to this inmate; the case should be remanded for more fact-finding.
- Troubled man armed with a knife disregards Shreveport, La. officer's commands. He advances toward the officer, who initially gives ground but then shoots, kills him. Fifth Circuit: Qualified immunity. Video belies plaintiff's claims that the officer shot him at 30 feet (it was more like 10) and that the man was stumbling (he was advancing relatively quickly).
- Seated, handcuffed mentally ill man spits on McKinney, Tex. officers. They take him to ground. His head hits a cabinet on the way down, opening a 5-inch gash that requires seven staples. Video belies an officer's report of the incident; he amends his report after watching the video. Fifth Circuit: There is no constitutional right to be free from false police reports. And while it's clearly established that slamming a subdued suspect into a car with enough force to break teeth is excessive force, it's not clearly established that slamming a cuffed detainee into a cabinet is.
- Kentucky law outlaws abortion unless a doctor first performs an ultrasound and displays and describes the images to the patient along with playing audible audio of the fetal heartbeat. A First Amendment violation? Not at all, says the Sixth Circuit; the Supreme Court has said informed consent requirements like this are A-OK. Dissent: The Supreme Court has said no such thing; this is straightforward compelled speech that doesn't have the least bit to do with informed consent.
- White County, Tenn. judge offers inmates 30 days off their sentences if they submit to vasectomies (for men) or contraceptive implants (for women). The program is swiftly terminated; inmates who were sterilized (or who agreed to be) are given their sentence reductions. Are inmates who did not agree to be sterilized also entitled to the 30-day credits? Plaintiffs have been released from jail, but their case is not moot, says two-thirds of a Sixth Circuit panel. They can petition for expungement 30 days sooner if they get the credit.
- District court: There is no clearly established right for suicidal pretrial detainees not to be deprived of bedding and forced to sleep on a freezing concrete floor for several consecutive months in constantly lit, frequently noisy area—so qualified immunity for Montgomery County, Ohio jail officials. But the detainee can sue the county. Jury: The county isn't liable. Sixth Circuit. Affirmed.
- Allegation: Lansing, Mich. police execute search warrants at plaintiffs' houses, wantonly damaging property and causing building code violations. Then they call in a code inspector, who deems the homes uninhabitable, which prevents cleanup for nearly a month and results in a rodent infestation in one house. Sixth Circuit: Plaintiffs failed to properly identify the individual officers involved, so qualified immunity. Some of their claims against the inspectors can go, however.
- Under Seventh Circuit precedent, private companies are shielded from liability for the actions of their employees if the company is acting as an arm of the state. Seventh Circuit: And there's no need to revisit that here. Concurrence: But our precedent is problematic in cases where an individual employee may not have acted with deliberate indifference but a bunch of employees collectively did—for instance, a team of medical contractors failing to schedule an inmate's surgery promptly. Attorneys take note.
- Cruise ship passenger slips on a step, breaks his arm. There was a "watch your step" sign, but the light illuminating it was out. Eleventh Circuit: And a jury should decide whether the cruise did enough to warn the passenger. Indeed, the "watch your step" sign itself is evidence of a problem. Judge Sutton, sitting by designation, notes his reluctance to dissent given that his home Sixth Circuit is "largely land-locked and exclusively fresh-water." (He dissents anyway.)
- During a four-hour standoff at Birmingham, Ala. home, officers hear a power drill, are told by a hostage that the hostage taker is "doing something in a hole in the floor." Police lay siege, find a piece of plywood hastily screwed to the floor. Prying it up, they find 31 firearms in the crawlspace, leading the hostage taker to be charged as a felon in possession. A Fourth Amendment violation? Eleventh Circuit: For all the cops knew, there was another hostage down there, so the search was a reasonable response to exigent circumstances. Dissent: Could there have been a hostage down there? Yes. Did the cops have probable cause to believe that? No.
- Allegations: Man is arrested for driving under the influence at the scene of an apparent car accident. When booked, he says he's "all busted up from [a] car wreck." Despite spending the night moaning, crying out in pain, and informing Covington County, Ala. jail guards that he is "dying," he is told to "shut up" and receives no medical care until morning. After collapsing and spitting up blood, he dies of internal bleeding on the way to the hospital. Eleventh Circuit: That does sound like "deliberate indifference" (if it's true). No qualified immunity.
- Massachusetts woman flees to Florida to get away from her family. She's arrested, pleads guilty to two misdemeanors related to using a false name. Can the state forfeit her Cadillac Escalade, which she registered under the false name? Florida appeals court: That might be grossly disproportionate to the gravity of her offense. See Timbs v. Indiana.
- And in en banc news, the Ninth Circuit will not reconsider a decision requiring charities to turn over lists of their donors to California officials, despite district court findings that the state's cybersecurity is abysmally porous, that the plaintiff's donors have been targeted with death threats, and that the information has never actually been used in an enforcement proceeding. Five judges dissent from denial. (We discussed a similar New York law on the podcast.)
- And in further en banc news, the Ninth Circuit will not reconsider its decision that Boise, Idaho's ban on homeless people sleeping outside is cruel and unusual when there is no access to alternative shelter. A concurrence castigates "dissentals" that "read more like petitions for writ of certiorari on steroids, rather than reasoned judicial opinions." One dissental discusses the circuit split and trots out a vivid parade of horribles, while another explains the view that the Cruel and Unusual Punishments Clause does not impose substantive limits on what conduct a state may criminalize.
- And in even more en banc news, the Ninth Circuit will reconsider its decision that fossils— from two dinosaurs that remain intertwined after a duel to the death 66 million years ago—belong to the owner of the mineral rights rather than the surface estate.
Do you live in Dallas? Know someone who does? IJ will be hosting a panel discussion on civil forfeiture at Old Parkland on April 16. It's not just lawyers talking! We'll have two of our clients whose money was seized—a nurse who was carrying her savings to start a medical clinic in Nigeria and a man who was escorting a Christian rock band on a tour where they were raising money for charity. IJ President Scott Bullock will also be on hand to discuss our unanimous victory in Timbs v. Indiana and our strategy challenging forfeiture in the months ahead. The event is free, but we ask that you RSVP by April 10 to ensure your spot.